DP (by his ALR, Keith Clarke) v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 28 September 2020 |
| Neutral Citation | [2020] EWCOP 45 |
| Docket Number | Case No: 13102876 |
| Date | 28 September 2020 |
| Court | Court of Protection |
[2020] EWCOP 45
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
Case No: 13102876
Ms Victoria Butler-Cole QC, Mr Oliver Lewis (instructed by Burke Niazi solicitors) for the Applicant
Mr Lee Parkhill (instructed by The London Borough of Hillingdon) for the Respondent
Hearing dates: 29 th 30 th July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered following a remote hearing conducted on a video conferencing platform and was attended by members of the public and the press. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the respondent and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is an application for permission to appeal (with appeal to follow) orders made by Deputy District Judge Chahal QC (Hon), on 22 nd May 2020. In her judgment DDJ Chahal concluded that there was sufficient evidence to make a declaration, pursuant to s.48 Mental Capacity Act 2005 (“MCA”), that the protected person (DP) “lacks capacity to make decisions with regard to his care and residence.” DDJ Chahal also determined “given the quality of evidence on DP's capacity, the court will also order a s.49 report for further evidence on capacity and best interest [sic] issues to be obtained by the parties after questions have been devised by the parties jointly to be put to the expert. The report shall be obtained from an appropriate medical expert, as soon as practicably possible, given the COVID-19 pandemic,”
On the 25 th June 2020, i.e. postdating the application for permission to appeal, DDJ Chahal sent the parties a directions order, dated 23 rd June 2020, in which she made interim declarations pursuant to Section 48 of the MCA to the effect that DP lacked capacity both to conduct proceedings and to make a decision in relation to the question whether or not he should be accommodated in the care home for the purpose of being given the relevant care and treatment. The judge directed the parties to identify a relevant expert with a view to producing a s.49 MCA assessment evaluating DP's capacity.
Ms Butler-Cole QC, who did not appear below and Mr Oliver Lewis act on DP's behalf, via his Accredited Legal Representative (ALR) Mr Keith Clarke. They identify four grounds of appeal, contending:
Ground 1: The judge wrongly failed to terminate the standard authorisation;
Ground 2: the judge wrongly approached the question whether to make a declaration of incapacity as a best interests decision;
Ground 3: and the judge's order is in breach of Article 5(4) ECHR;
Ground 4: The judge's order is in breach of Article 8 ECHR.
DP, is 72 years of age and has a diagnosis of “organic personality disorder and associated catatonic disorder, secondary to a stroke” (cerebrovascular accident in 2000 and 2003). DP has been a resident of NN Care Home since 19 th June 2004. He requires support with activities of daily living including personal care, hygiene, medication, mobility, nutrition and general safety. He has been prescribed antipsychotic medication, namely sulpiride which is administered at 300mg twice daily. He also receives a mood stabiliser, sodium valproate 250mg again, twice daily. It is reported by the Registered General Nurse (RGN) that at the care home, DP requires support of at least one staff member for his personal care and hygiene needs but requires 2 staff members when catatonic. Episodes of catatonia occur approximately once every 2 weeks and endure usually for one day, though occasionally for 3 days. DP is doubly incontinent and requires incontinence pads. He mobilises independently for short distances but uses a wheelchair for longer distances. He is able to feed himself, save when catatonic. When he is catatonic it is possible to continue feeding him, with support.
The London Borough of Hillingdon, the Local Authority, granted a standard authorisation on 17 th September 2019 which is due to expire on 16 th September 2020. This deprives DP of his liberty at NN Care Home. The standard authorisation is subject to one condition:
“The Managing Authority must continue to liaise with care management and exploring ways of supporting [DP] to access community and facilitate contact with his friend. Action plan should be updated with actions taken and outcome for future reference.”
Mental health and mental capacity assessments were carried out on 30 th August 2019 by Dr Omolade Longe. The assessment concluded that DP lacks capacity to decide whether or not to be accommodated in the care home. Dr Longe assessed DP as being able both to understand and to retain information relevant to his care and accommodation but as being unable to use/weigh the information. Dr Longe also assessed DP as being unable to communicate his decision.
The parties identified the issues which fell to be determined by the Court, pursuant to s21A Mental Capacity Act 2005, as follows:
i. DP's mental capacity to make decisions about his residence and care;
ii. whether, if DP lacked capacity, the current arrangements for his care and accommodation remain in his best interests.
The only evidence as to capacity came from Dr Longe. DDJ Chahal analysed that evidence in some detail. She noted that Dr Longe had consulted with the RGN and the paid representative, Mrs Geeta Bance. The Deputy District Judge observed:
“45. Dr Longe has completed the Deprivation of Liberty Safeguards Form 4, Mental Capacity, Mental Health and Eligibility Assessments. This form bears the Department of Health Logo and the words “adass” ie adult and directors of social services. The form is widely used for these assessments by local authorities. Dr Longe stated on the form that he is a section 12 approved doctor and his address is given as C/O Mental Health First. There is no CV supplied and that is all that is known about Dr Longe. His experience and expertise are not provided. This is commonplace as the form does not seek this information. It would be instructive if it did.
46. A s.12 approved doctor refers to the qualifications required of a doctor making a medical recommendation for detention under the Mental Health Act 1983 as amended. S.12 states:
‘Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder…’
It was noted that Dr Longe had taken some sensible measures to promote DP's capacity:
“I called to speak to staff of N[..]N Home in advance to ascertain the best possible time to interview [DP]. I ensured that [DP] was comfortable and as alert as possible. I also ensured he was not under the influence of sedative medication at the time of the interview (daytime hours on 29/08/19). [DP] was assessed in his room which was well lit and quiet. He does not have any significant visual or auditory impairment. [DP] speaks English and did not require an interpreter. I engaged [DP] using simple sentences to aid his understanding and encourage interaction.”
DDJ Chahal highlighted the fact that Dr Longe had not explained the purpose of his visit and my own observations as to the significance of such an omission in The London Borough of Wandsworth v M & Ors (Rev 2) [2017] EWHC 2435 (Fam). She states:
“48. … This is where Dr Longe might be expected to say something about the purpose of his visit and any explanation he gave to DP about the reason for the assessment. This is not found on the form itself. The form could usefully be amended to add a question seeking this information. Elsewhere Dr Longe stated that he introduced himself “as a BIA acting on behalf of the London Borough of Hillingdon to review his care and support needs”. This is clearly an inaccurate description of the purpose of his visit. Hayden J found a failure to properly explain the purpose of the assessment to be a critical one in the Wandsworth case (para 71) and said it could be fatal or at least gravely undermines the assessment. He was not dealing with interim applications or indeed assessments for a standard authorisation. Clearly, there is scope for training on both the need for and how such explanations could be given.”
DDJ Chahal set out Dr Longe's approach to the “functional test” i.e. ability to understand the information relevant to the decision; ability to retain the information; ability to use and weigh the information integral to the decision. The judgment records the following:
“51. Dr Longe addressed the next question on the form which is set out as follows: Stage Two: Functional test. This is divided into 3 sections a.b.c. a. The Person is unable to understand the information relevant to the decision. (Note: oddly the question is set out in the negative rather than as a question for reasons which do not make sense since Dr Longe found that DP was able to understand). Record how you have tested whether the person can understand the information, the questions used, how you presented the information and your findings. Dr Longe stated:
“[DP] was provided information relevant to his care and accommodation needs. He was informed of his episodes of stroke and how this caused some degree...
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